EFF Tells Court That Boing Boing Linking To Playboy Images Is Not Infringement

Back in November, we wrote about a fairly crazy case in which Playboy Enterprises was suing the blog Boing Boing for copyright infringement, over a post by Xeni Jardin, linking to a collection of all Playboy centerfold images on Imgur (and a video version on YouTube). As we wrote in our post, this seemed like a very strange hill for Playboy to die on, given that Boing Boing clearly did not post the images, but merely linked to them, meaning that it was pretty clearly not infringement. There were some really strange arguments in the complaint, and the initial reporting on it that we saw was really bad -- falsely claiming the lawsuit said that Boing Boing "stole every centerfold ever." But, of course, there was no stealing at all. Just linking.

Boing Boing has now responded to the lawsuit, with help from EFF and top notch lawyers Mark Lemley and Joe Gratz from the law firm of Durie Tangri. The motion to dismiss is pretty thorough and well argued (no surprise), explaining why the case should be tossed out, because even if everything Playboy argued is true, Boing Boing has not committed any copyright infringement at all in merely linking. The MTD doesn't pull any punches:

This lawsuit is frankly mystifying. Playboy’s theory of liability seems to be that it is illegal to link to material posted by others on the web—an act performed daily by hundreds of millions of users of Facebook and Twitter, and by journalists like the ones in Playboy’s crosshairs here.

The filing describes how nothing Boing Boing did involved direct or secondary infringement, and even if it was, it's clearly protected by fair use:

The facts pleaded in Playboy’s First Amended Complaint (“FAC”) do not state a claim for either direct or contributory copyright infringement. With respect to direct infringement, Playboy alleges that third parties—not Boing Boing—posted the collection at issue, and that Boing Boing made reference to that collection with a hyperlink. As for secondary liability, Playboy does not allege facts that could show that Boing Boing induced or materially contributed to direct infringement by any third party. Playboy’s claim fails for these reasons alone.

What is more, Playboy’s own allegations show that further amendment would be futile. Boing Boing’s post is a noninfringing fair use, made for the favored and transformative purposes of news reporting, criticism, and commentary so that the reader can, in the words of the post in question, “see how our standards of hotness, and the art of commercial erotic photography, have changed over time.”

Amusingly, the Playboy complaint is so deficient that the Boing Boing motion has to try to make out what a better argument for Playboy might be... and then explain why even that would be wrong:

One possible theory on which Plaintiff may be proceeding is that the direct infringers in question are the individual or individuals who uploaded the photos in question to Imgur and YouTube. Even assuming arguendo that those uploads constituted direct infringement, that would not support a claim for contributory infringement against Boing Boing, because—as the FAC alleges—Boing Boing posted only after that third party completed the uploading, and therefore completed the alleged infringement. As discussed below, that allegation precludes contributory liability on either a materialcontribution theory or an inducement theory.

The filing does note that Boing Boing did post one image with its post... but also points out that Playboy doesn't claim the copyright on that image because it's in the public domain:

The Boing Boing blog post itself includes, as a header image, a partial reproduction of the centerfold of Miss February 1954... The FAC does not make any allegations with respect to that image, and Playboy does not include Miss February 1954 in the list of images to which it claims ownership. ECF No. 15-1. And rightly so: the February 1954 issue of Playboy entered the public domain in 1981, when Playboy did not renew its copyright registration.

But on the meat of the claim, there's clearly no infringement in sending people off to view infringing material:

It is well-established that controlling the viewing of copyrighted material is not within the exclusive rights of the copyright holder. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d at 1169; see also Flava Works, Inc. v. Gunter, 689 F.3d 754, 757-58 (7th Cir. 2012). Indeed, courts have been rejecting secondary liability claims founded on the alleged viewing of